Citation Nr: 21072483 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-18 599 DATE: December 3, 2021 ORDER Entitlement to service connection for bilateral carpal tunnel syndrome is dismissed. Entitlement to a rating in excess of 20 percent for a right ulna fracture is dismissed. Entitlement to a rating in excess of 30 percent for a right tibia and fibula fracture prior to September 1, 2019, and in excess of 40 percent thereafter, is dismissed. REMANDED Entitlement to a rating in excess of 30 percent for persistent depressive disorder (hereinafter psychiatric disorder) is remanded. Entitlement to a compensable rating for an iliac crest graft scar is remanded. FINDING OF FACT At the May 2020 Board hearing, the Veteran's agent indicated on the record that the Veteran wished to withdraw from appellate consideration the issues of entitlement to service connection for bilateral carpal tunnel syndrome, entitlement to a rating in excess of 20 percent for a right ulna fracture, and entitlement to a rating in excess of 30 percent for a right tibia and fibula fracture prior to September 1, 2019, and in excess of 40 percent thereafter. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the issues of entitlement to service connection for bilateral carpal tunnel syndrome, entitlement to a rating in excess of 20 percent for a right ulna fracture, and entitlement to a rating in excess of 30 percent for a right tibia and fibula fracture prior to September 1, 2019, and in excess of 40 percent thereafter, by the appellant or his authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2017 and October 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for bilateral carpal tunnel syndrome, continued the 20 percent rating for a right ulna fracture, continued the 30 percent rating for a right tibia and fibula fracture, continued the noncompensable rating for an iliac crest graft scar, and granted service connection for a psychiatric disorder and assigned a 30 percent rating, effective April 30, 2018, respectively. The Board observes that in September 2018, the Veteran filed a Notice of Disagreement (NOD) with respect to the issue of entitlement to a compensable rating for right lower extremity scars. A Statement of the Case (SOC) was issued in September 2018. As the Veteran failed to file a timely VA Form 9 for that claim, the issue is not presently before the Board. The Board notes that the September 2018 NOD also included the issue of entitlement to an extension for paragraph 30 convalescence benefits following surgery for a right tibia and fibula fracture. In a September 2018 rating decision, the RO extended the 100 percent evaluation for convalescence benefits following surgery from October 1, 2018 to December 31, 2018. That award constitutes a full grant of the disability sought, and that appeal has been resolved. The Board also notes that in a June 2019 rating decision, the RO extended the Veteran's paragraph 30 convalescence benefits following surgery from January 1, 2019 to August 31, 2019 and assigned a 40 percent rating for the Veteran's service-connected right tibia and fibula fracture, effective September 1, 2019. In May 2020, the Veteran testified at a tele-hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to service connection for bilateral carpal tunnel syndrome is dismissed. 2. Entitlement to a rating in excess of 20 percent for a right ulna fracture is dismissed. 3. Entitlement to a rating in excess of 30 percent for a right tibia and fibula fracture prior to September 1, 2019, and in excess of 40 percent thereafter, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55(a). In the present case, at the May 2020 Board hearing, the Veteran, through his agent, expressed a desire to withdraw his appeal as to the issues of entitlement to service connection for bilateral carpal tunnel syndrome, entitlement to a rating in excess of 20 percent for a right ulna fracture, and entitlement to a rating in excess of 30 percent for a right tibia and fibula fracture prior to September 1, 2019, and in excess of 40 percent thereafter. The Board finds that this withdrawal on the record at the May 2020 Board hearing constitutes an explicit and unambiguous withdrawal of the issues of entitlement to service connection for bilateral carpal tunnel syndrome, entitlement to a rating in excess of 20 percent for a right ulna fracture, and entitlement to a rating in excess of 30 percent for a right tibia and fibula fracture prior to September 1, 2019, and in excess of 40 percent thereafter. The Board finds that the withdrawal was done with a full understanding of the consequences of such action. At the hearing, the undersigned explained the consequences of withdrawing the appeal of these issues and the Veteran indicated that he understood, had consulted with his agent, and confirmed that he wished to proceed with the withdrawal. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v. O'Rourke, 891 F.3d 1009 (2018). Hence, there remain no allegations of fact or law for appellate consideration with respect to the claims of entitlement to service connection for bilateral carpal tunnel syndrome, entitlement to a rating in excess of 20 percent for a right ulna fracture, and entitlement to a rating in excess of 30 percent for a right tibia and fibula fracture prior to September 1, 2019, and in excess of 40 percent thereafter. Under these circumstances, these issues are no longer within the Board's jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc) aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the claimant indicates that consideration of that issue should cease). Accordingly, the Board does not have jurisdiction to review the appeal of the issues, and these matters are dismissed. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for a psychiatric disorder is remanded. The Veteran contends that his psychiatric disorder is more severe than currently rated. See May 2020 Transcript of Hearing, pages 4-11, 14. The Veteran was most recently afforded a VA examination in October 2018. At the May 2020 Board hearing, referenced above, the Veteran's agent indicated that the Veteran's psychiatric disorder had worsened since he was last examined for VA compensation purposes. The Veteran testified that he was isolative and experienced severe depression, anger issues, and suicidal ideation. As such, upon remand, the Veteran should be afforded a new VA examination to assess the current severity of his psychiatric disorder. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Additionally, the Veteran testified that he received his psychiatric medication, the dosage of which had recently been increased, from a private physician, Dr. Sinha. Treatment records from Dr. Sinha, however, have not been associated with the claims file. Since these private records are relevant to his claim, and they have not been associated with the claims file, the VA has a duty to undertake reasonable efforts to obtain those records. Thus, a remand is also warranted to enable the RO to obtain these potentially relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 2. Entitlement to a compensable rating for an iliac crest graft scar is remanded. The Veteran contends that his iliac crest graft scar is more severe than currently rated. See May 2020 Transcript of Hearing, pages 13-14. At the May 2020 Board hearing, referenced above, the Veteran testified that his iliac crest graft scar had worsened since he was last examined for VA compensation purposes. He indicated that he experienced "eruptions" of the skin around the area of the scar. As such, upon remand, the Veteran should be afforded a new VA examination to assess the current severity of his iliac crest graft scar. See Snuffer, 10 Vet. App. 400; Caffrey, 6 Vet. App. 377. Accordingly, the matters are REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, procure any records pertaining to the Veteran's psychiatric disorder from Dr. Sinha and any other private practitioners identified by the Veteran. 2. Afford the Veteran a VA examination to determine the current severity of his service-connected psychiatric disorder. Access to the Veteran's VA claims filed should be made available to the examiner for review. The examiner should report all signs and symptoms necessary for rating the Veteran's psychiatric disorder under the General Rating Formula for Mental Disorders. The examiner should address the level of social and occupational impairment attributable to the Veteran's psychiatric disorder. 3. Afford the Veteran a VA examination to determine the severity of his service-connected iliac crest graft scar. Access to the Veteran's VA claims filed should be made available to the examiner for review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, including reported skin eruptions around the area of the scar. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.